Re Estate of Ronald Spencer Cornford; Cornford v Metcalfe

[2005] NSWSC 530

CITATION:	Re Estate of Ronald Spencer Cornford; Cornford v Metcalfe [2005] NSWSC 530
HEARING DATE(S):	30 May 2005
JUDGMENT DATE :	30 May 2005
JURISDICTION:	Equity Probate List
JUDGMENT OF:	Campbell J
DECISION:	Leave to withdraw admission not needed once amended pleading filed. Pleading not embarrassing. Facts on basis of which extension of time is sought should be pleaded.

CATCHWORDS:	PROCEDURE - Supreme Court procedure - pleading amended by leave in a way which withdraws an admission previously made - whether any leave needed subsequently to withdraw that admission - whether raising matters which had been conceded for years makes a pleading embarrassing - need for pleading of matters relied upon when seeking order for extension of time to make application under section 29A Wills, Probate and Administration Act 1898 for rectification of a will - SUCCESSION - WILLS PROBATE AND ADMINISTRATION - rectification of will - need to plead basis on which extension of time for making application for rectification is sought
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970 Wills, Probate and Administration Act 1898
CASES CITED:	Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738
PARTIES:	Ian Spencer Cornford - Plaintiff Dennis Lambourne & Anna Melissa Metcalfe - First Defendants Rhonda Valerie Metcalfe - Second Defendant
FILE NUMBER(S):	SC 119706/01
COUNSEL:	C J Bevan - Plaintiff J E Armfield - Defendants
SOLICITORS:	John Carmody & Co - Plaintiff Terence Stern - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

MONDAY 30 MAY 2005

119706/01 IAN SPENCER CORNFORD v DENNIS LAMBOURNE & ANNA MELISSA METCALFE & ANOR – THE ESTATE OF RONALD SPENCER CORNFORD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is a hearing of two Notices of Motion. One of them is a Notice of Motion by the plaintiff which seeks an order that certain paragraphs of an Amended Defence filed by the defendants on 21 December 2004 be struck out and an order that the Cross-Claim filed by the defendants on 11 February 2005 be struck out. That Notice of Motion also seeks an order that the defendants permit inspection of certain documents in relation to which a claim for privilege had been made by them. Those documents are ones which were produced pursuant to a subpoena.

2 The case is one which has been underway for a long time. The Statement of Claim was filed on 10 December 2001. It is not necessary to go into the detail of the issues in the case, save to say that they relate to the administration of two deceased estates, one being the estate of the late Iris Cornford, the other being the estate of Iris Cornford’s husband, Mr Ronald Cornford. They were the parents of the plaintiff.

3 The Statement of Claim is one which made an allegation, in paragraph 3, that the plaintiff brought the proceedings for the benefit of, first, the estate of the late Mrs Cornford, secondly, the estate of the late Mr Cornford and, thirdly, in his personal capacity as a beneficiary under the will of each of Mr and Mrs Cornford.

4 In a Defence which was filed on 8 July 2002 the defendants admitted that allegation. The defendants at that stage were Mr and Mrs Metcalfe. Mrs Metcalf as the sister of the plaintiff and Mr Metcalfe was her husband. Since that Defence was filed, Mr Metcalfe has unfortunately died, and the executors of his will have now been substituted as defendants in the place of Mr Metcalfe.

5 The next allegation in contention is one which was made in paragraph 21 of the Statement of Claim. It alleged, in summary form, what the contents of Mr Cornford’s will were. The will contained two options, one to purchase land, the other to purchase a milk quota.

6 Paragraph 21 of the Statement of Claim summarised the effect of those two options, as the plaintiff contended. The Defence filed on 8 July 2002 admitted paragraph 21, subject to a saving which is irrelevant for present purposes.

7 Paragraphs 45 and 46 of the Statement of Claim are ones which pleaded that Mr Metcalfe (who was the person to whom the two options had been given by the will) had exercised both of them, and that he had become contractually bound to purchase the land and the milk quota, and to tender a particular sum of money which was the sum of money which, on the plaintiff’s contention, was the amount properly due upon exercise of the option. The Defence of 8 July 2002 in paragraphs 1 and 23 admitted those paragraphs, again subject to an exception which is not presently relevant.

8 Paragraph 49 of the Statement of Claim alleged that Mr Metcalfe was indebted to Mr Cornford’s estate in a particular sum of money, which was the sum of money that the plaintiff contended was properly owing on the true construction of the two options contained in the will. The Defence, in paragraph 26, asserts that the defendants are ready, willing and able to pay such amount as should be found to be payable to the estate by reason of the exercise of the option, save that no grant of probate of Mr Cornford’s estate has yet been obtained, and otherwise do not admit paragraph 49.

9 On 6 December 2004 the court, by consent, made orders which included that the defendants have leave to file and serve, on or before Monday 20 December 2004, an Amended Defence to the Statement of Claim and a Cross-Claim against the plaintiff in the form of two particular draft documents. Those draft documents were annexed to the Short Minutes of Order themselves.

10 In the Amended Defence, the admission which had been made concerning paragraph 3 of the Statement of Claim was replaced by an admission that the plaintiff brought the proceedings for his own benefit, and a non admission of the balance of the allegations in paragraph 3. The Amended Defence in relation to paragraph 21 of the Statement of Claim took issue with the plaintiff’s allegation of the amount which was properly payable for the purchase of the milk quota, saying that the price specified in the will for the purchase of an interest in that quota did not carry out Mr Cornford’s intentions. That Defence is one which does not go far by itself, but was clearly the basis for an allegation, to which I will come, made in the Cross-Claim.

11 The Amended Defence also denied that, in consequence of the exercise of the options, the defendants were obliged to pay the particular sum of money which the plaintiff asserts they are obliged to pay.

12 The Cross-Claim which was filed is one which seeks an order under section 29A, Wills Probate and Administration Act 1898 for rectification of the will of Mr Cornford, to give effect to what the defendants say was his true intention concerning the price at which the interest in the milk quota could be purchased.

13 An Amended Defence and Cross-Claim, in the terms concerning which leave had been granted, have now been filed in court.

14 The plaintiff seeks to strike out, by its Notice of Motion, those paragraphs which have made the very changes which the plaintiff consented to on 6 December 2004. The basis on which the plaintiff alleges this should be done is that the leave of the court is required to withdraw an admission and that the mere making of an order granting leave to file a pleading, which has the effect that an admission which once was made is no longer made, is not enough to amount to the granting of such leave. Reliance is placed upon the decision of Rogers CJ ComD in Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738 where his Honour refused a party to litigation leave to withdraw an admission. The admission in that case was made in a very different forensic context to that relevant to the present case. In Coopers v Panfida, as his Honour described it at 744:

“Giles J by consent made an order which in a particular event required an admission to be made. After consideration, and advice from its expert, and in a formal fashion, first the solicitor and then senior counsel for the defendant made the admission.”

15 When a new senior counsel came into the case, the party that had made the admission acquired a desire to withdraw it. It was in those circumstances that the question came before his Honour. One of the reasons why his Honour refused leave was his view, at 748, that the admissions had been correctly made.

16 As well, it would be relevant that the case in question was a proceeding in the commercial list, and that the power which Giles J had been exercising was a power to require certain admissions to be made pursuant to section 82, Supreme Court Act1970.

17 This is a case in the Probate List. The issues in it are defined by pleadings. It is, it seems to me, to the rules concerning pleading that one must look to work out whether any leave of the Court is needed, today, before an admission can be withdrawn. There is provision in Part 18 rule 1 Supreme Court Rules 1970 for a party who has made an admission pursuant to a notice to admit to withdraw an admission with leave of the Court. There is nothing analogous to that rule in Part 15 Supreme Court Rules, which deals with pleadings. In my view, once the Court has made an order that a pleading may be amended, in a way which has the effect of withdrawing the admission, then as soon as that leave is acted on the admission is withdrawn.

18 In my view that is what has happened in the present case. The plaintiff, by his consent to the granting of that leave on 6 December 2004, has foreclosed his ability to seek to have the particulars of the Amended Defence and Cross-Claim struck out on the ground that leave of the Court is needed to withdraw any admission.

19 There are some other bases upon which the strike-out is sought. One of them is that what the defendants are doing is embarrassing because it purports to now bring into question matters which have not been in dispute for three-and-a-half years. In my view an amendment which has that effect is not one which is embarrassing. There may be, sometimes, other reasons why it should not be made but embarrassment is not one of them. Thus the amendments cannot be struck out on the ground that they are embarrassing.

20 As well, the plaintiff points to the fact that, if all the contentions which the defendant now makes are right, that would mean that Mr Cornford had two quite different views of the value of his milk quota at the one time and applied one of those views for the purpose of a sale inter vivos of an interest in the milk quota which he engaged in and another for the purpose of his will. In my view even if there be that inconsistency, it is not something which makes a pleading embarrassing. It is something which may well provide a ground for a court ultimately concluding that it was unlikely that Mr Cornford intended to sell the interest in the quota inter vivos for the price nominated in the sale document, and also intended to leave the interest in the quota by will subject to an option to purchase for the price nominated in the will, but that is a quite different question to the adequacy of a pleading. For those reasons I would not strike out the amendments which have been made to the Defence.

21 The Cross-Claim is one which seeks rectification of the will. The particular aspect of the will concerning which rectification is sought relates to the price at which the milk quota was to be sold pursuant to the option granted by the will. It alleges that Mr Cornford made a mistake in writing down the basis for calculating that price in the option clause of his will and that that mistake should be rectified.

22 The reasons which I have given already are ones which would not result in the striking out of the Cross-Claim in its entirety. As well, however, the Cross-Claim is one which was made a long time after the time limited by section 29A Wills, Probate and Administration Act 1898 for the filing of an application seeking rectification of the will. It contains a prayer for relief, seeking an order that the time for the making of the application be extended up to and including the date of filing the Cross-Claim. Nothing in the body of the pleading provides any basis for why the Court ought make such an order.

23 Section 29A(3) Wills Probate and Administration Act 1898 says:

“The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period.”

24 That is a very open-ended test. When an application under section 29A is propounded by a pleading, it is, in my view, necessary that the pleading identify the particular factual matters which the applicant proposes to rely upon to satisfy the Court that sufficient cause is shown for the failure to make the application within that period. The present Cross-Claim, as I have said, does not do that. That leaves a question of what the Court should do in consequence of that deficiency. When an order has already been made granting leave to file this very Cross-Claim, and that order has been made by consent, it would not be appropriate for the Court to take the step which it otherwise might take of striking out the Cross-Claim because of the failure to plead the basis of the application for extension of time. Rather, the appropriate way to deal with the situation is to direct the filing of an Amended Cross-Claim, which makes such allegations as the cross-claimant wishes concerning the basis for extension. I direct the defendants to file and serve such an Amended Cross-Claim by 5pm Monday 20 June 2005.

25 Concerning access to documents, discussion with counsel in the course of the hearing has resulted in a situation where there is now no live issue. The plaintiff no longer seeks access to the documents in question. However, the parties will need to bring in some short minutes of order to make clear precisely what has been agreed between them, or conceded, concerning access to those documents. I direct that the parties bring in Short Minutes of Order of that kind by 5pm Tuesday, 14 June 2005.

26 The defendants’ Notice of Motion was one which was the obverse of the plaintiff’s insofar as it sought access to documents. Thus, there is no live issue concerning it either.

27 As the counsel for the parties are confident that they will be able to agree on the Short Minutes of Order I will not make a specific date on which the matter will be brought back to Court for the purpose of making orders disposing of the Notices of Motion. However, against the, I hope, unlikely possibility that they are not able to reach agreement, I grant liberty to restore the matter before me on two days’ notice.

28 The defendants seek an order that the plaintiff pay the costs of the defendants of both Motions. The plaintiff opposed that, at least so far as the attempt to strike out the pleadings was concerned, on the ground that the plaintiff was a stranger to the transaction and that this is probate litigation. I do not regard that as a reason why the prima facie rule that costs follow the event ought not apply. I order the plaintiff to pay the costs of the defendants of both Motions.

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